Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 261

Introduced by Assembly Member Travis Allen

February 9, 2015

An act to amend Section begin delete 22972 of the Business and Professions Code, end delete begin insert 11364.5 of the Health and Safety Code, end insert relating to cigarettes and tobacco products.

LEGISLATIVE COUNSEL’S DIGEST

AB 261, as amended, Travis Allen. Cigarettes and tobacco products: begin delete retailers: licenses. end delete begin insert retailers. end insert

The California Cigarette and Tobacco Products Licensing Act of 2003 requires a retailer to have and maintain a license from the State Board of Equalization to engage in the sale of cigarette and tobacco products in California.

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This bill would make a nonsubstantive change to that provision.

end delete begin insert

Existing law prohibits a person from maintaining or operating any place of business in which drug paraphernalia is kept, displayed, or offered in any manner, sold, furnished, transferred, or given away, unless that drug paraphernalia is completely and wholly kept, displayed, or offered within a separate room or enclosure to which persons under 18 years of age not accompanied by a parent or legal guardian are excluded. Under existing law, a violation of that provision is not a criminal offense, but is grounds for revocation or nonrenewal of any license, permit, or other entitlement previously issued by a city, county, or city and county for the privilege of engaging in that business and is grounds for denial of any future license, permit, or other entitlement authorizing the conduct of that business or any other business, if the business includes the sale of drug paraphernalia.

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This bill would instead prohibit a person from maintaining or operating a place of business described above unless the person has in place and maintains a license to engage in the sale of cigarette or tobacco products, and the place of business derives at least 50% of its annual gross revenues from the retail sale of cigarettes or tobacco products, as those terms are defined.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert Section 11364.5 of the end insert begin insert Health and Safety Code end insert
begin insert is amended to read: end insert

11364.5.  

(a)  Except as authorized by law, begin delete no end delete begin insert a end insert person shall
begin insert not end insert maintain or operate any place of business in which drug
paraphernalia is kept, displayed or offered in any manner, sold,
furnished, transferred or given away unless begin delete such end delete begin insert all of the following
conditions are satisfied: end insert

begin insert (1) end insert begin insert   end insert begin insert The end insert drug paraphernalia is completely and wholly kept,
displayed or offered within a separate room or enclosure to which
persons under the age of 18 years not accompanied by a parent or
legal guardian are excluded. Each entrance to such a room or
enclosure shall be signposted in reasonably visible and legible
words to the effect that drug paraphernalia is kept, displayed or
offered in such room or enclosure and that minors, unless
accompanied by a parent or legal guardian, are excluded.

begin insert

(2) The person has in place and maintains a license to engage
in the sale of cigarettes or tobacco products issued pursuant to
Division 8.6 (commencing with Section 22970) of the Business
and Professions Code.

end insert begin insert

(3) The place of business derives at least 50 percent of its annual
gross revenues from the retail sale of cigarettes, as defined in
Section 30003 of the Revenue and Taxation Code, or tobacco
products, as defined in Sections 30121 and 30131.1 of the Revenue
and Taxation Code.

end insert

(b)  Except as authorized by law, begin delete no end delete begin insert an end insert owner, manager,
proprietor or other person in charge of any room or enclosure,
within any place of business, in which drug paraphernalia is kept,
displayed or offered in any manner, sold, furnished, transferred or
given away shall begin insert not end insert permit or allow any person under begin delete the age of end delete
18 years begin insert of age end insert to enter, be in, remain in or visit such room or
enclosure unless such minor person is accompanied by one of his
or her parents or by his or her legal guardian.

(c)  Unless authorized by law, begin delete no end delete begin insert a end insert person under begin delete the age of end delete 18
years begin insert of age end insert shall begin insert not end insert enter, be in, remain in or visit any room or
enclosure in any place of business in which drug paraphernalia is
kept, displayed or offered in any manner, sold, furnished,
transferred or given away unless accompanied by one of his or her
parents or by his or her legal guardian.

(d)  As used in this section, “drug paraphernalia” means all
equipment, products, and materials of any kind begin delete which end delete begin insert that end insert are
intended for use or designed for use, in planting, propagating,
cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing,
packaging, repackaging, storing, containing, concealing, injecting,
ingesting, inhaling, or otherwise introducing into the human body
a controlled substance. “Drug paraphernalia” includes, but is not
limited to, all of the following:

(1)  Kits intended for use or designed for use in planting,
propagating, cultivating, growing or harvesting of any species of
plant begin delete which end delete begin insert that end insert is a controlled substance or from which a
controlled substance can be derived.

(2)  Kits intended for use or designed for use in manufacturing,
compounding, converting, producing, processing, or preparing
controlled substances.

(3)  Isomerization devices intended for use or designed for use
in increasing the potency of any species of plant begin delete which end delete begin insert that end insert is a
controlled substance.

(4)  Testing equipment intended for use or designed for use in
identifying, or in analyzing the strength, effectiveness or purity of
controlled substances.

(5)  Scales and balances intended for use or designed for use in
weighing or measuring controlled substances.

(6)  Diluents and adulterants, such as quinine hydrochloride,
mannitol, mannite, dextrose, and lactose, intended for use or
designed for use in cutting controlled substances.

(7)  Separation gins and sifters intended for use or designed for
use in removing twigs and seeds from, or in otherwise cleaning or
refining, marijuana.

(8)  Blenders, bowls, containers, spoons, and mixing devices
intended for use or designed for use in compounding controlled
substances.

(9)  Capsules, balloons, envelopes, and other containers intended
for use or designed for use in packaging small quantities of
controlled substances.

(10)  Containers and other objects intended for use or designed
for use in storing or concealing controlled substances.

(11)  Hypodermic syringes, needles, and other objects intended
for use or designed for use in parenterally injecting controlled
substances into the human body.

(12)  Objects intended for use or designed for use in ingesting,
inhaling, or otherwise introducing marijuana, cocaine, hashish, or
hashish oil into the human body, such as the following:

(A)  Metal, wooden, acrylic, glass, stone, plastic, or ceramic
pipes with or without screens, permanent screens, hashish heads,
or punctured metal bowls.

(B)  Water pipes.

(C)  Carburetion tubes and devices.

(D)  Smoking and carburetion masks.

(E)  Roach clips, meaning objects used to hold burning material,
such as a marijuana cigarette that has become too small or too
short to be held in the hand.

(F)  Miniature cocaine begin delete spoons, end delete begin insert spoons end insert and cocaine vials.

(G)  Chamber pipes.

(H)  Carburetor pipes.

(I)  Electric pipes.

(J)  Air-driven pipes.

(K)  Chillums.

(L)  Bongs.

(M)  Ice pipes or chillers.

(e)  In determining whether an object is drug paraphernalia, a
court or other authority may consider, in addition to all other
logically relevant factors, the following:

(1)  Statements by an owner or by anyone in control of the object
concerning its use.

(2)  Prior convictions, if any, of an owner, or of anyone in
control of the object, under any state or federal law relating to any
controlled substance.

(3)  Direct or circumstantial evidence of the intent of an owner,
or of anyone in control of the object, to deliver it to persons whom
he or she knows, or should reasonably know, intend to use the
object to facilitate a violation of this section. The innocence of an
owner, or of anyone in control of the object, as to a direct violation
of this section shall not prevent a finding that the object is intended
for use, or designed for use, as drug paraphernalia.

(4)  Instructions, oral or written, provided with the object
concerning its use.

(5)  Descriptive begin delete materials, end delete begin insert materials end insert accompanying the object
begin delete which end delete begin insert that end insert explain or depict its use.

(6)  National and local advertising concerning its use.

(7)  The manner in which the object is displayed for sale.

(8)  Whether the owner, or anyone in control of the object, is a
legitimate supplier of like or related items to the community, such
as a licensed distributor or dealer of tobacco products.

(9)  The existence and scope of legitimate uses for the object
in the community.

(10)  Expert testimony concerning its use.

(f)  This section begin delete shall end delete begin insert does end insert not apply to any of the following:

(1)  Any pharmacist or other authorized person who sells or
furnishes drug paraphernalia described in paragraph (11) of
subdivision (d) upon the prescription of a physician, dentist,
podiatrist or veterinarian.

(2)  Any physician, dentist, podiatrist or veterinarian who
furnishes or prescribes drug paraphernalia described in paragraph
(11) of subdivision (d) to his or her patients.

(3)  Any manufacturer, wholesaler or retailer licensed by the
California State Board of Pharmacy to sell or transfer drug
paraphernalia described in paragraph (11) of subdivision (d).

(g)  Notwithstanding any other begin delete provision of end delete law, including
Section 11374, begin insert a end insert violation of this section begin delete shall end delete begin insert is end insert not begin delete constitute end delete a
criminal offense, but operation of a business in violation of the
provisions of this section shall be grounds for revocation or
nonrenewal of any license, permit, or other entitlement previously
issued by a city, county, or city and county for the privilege of
engaging in begin delete such end delete begin insert that end insert business and shall be grounds for denial of
any future license, permit, or other entitlement authorizing the
conduct of begin delete such end delete begin insert that end insert business or any other business, if the business
includes the sale of drug paraphernalia.

begin delete

SECTION 1.  

Section 22972 of the Business and Professions
Code is amended to read:

22972.  

(a) Commencing June 30, 2004, a retailer shall have
in place and maintain a license to engage in the sale of cigarettes
or tobacco products. A retailer that owns or controls more than
one retail location shall obtain a separate license for each retail
location, but may submit a single application for those licenses.

(b) The retailer shall conspicuously display the license at each
retail location in a manner that is visible to the public.

(c) A license is not assignable or transferable. A person who
obtains a license as a retailer who ceases to do business as specified
in the license, or who never commenced business, or whose license
is suspended or revoked, shall immediately surrender the license
to the board.

(d) A license shall be valid for a 12-month period, and shall be
renewed annually.

end delete